Coulibaly v Coulibaly & Ors (Alleged incompatibility of the Children Act 1989 with the ECHR) (Rev 1)

A declaration of incompatibility concerns whether existing legislation is compatible with a Convention right. It does not determine whether legislation is incomplete, could be strengthened, or lacks additional safeguards. Omissions which might properly be addressed by government or Parliament do not, without more, establish incompatibility.

Statutory powers must be read and exercised consistently with the Human Rights Act 1998 and the Convention. However, compatibility is assessed by reference to the provision under challenge, not by asking whether the wider statutory scheme provides every desirable protection. A power authorising reasonable force if necessary is not incompatible with Article 3 merely because excessive or unnecessary force might breach that Article in an individual case.

Olivia Coulibaly applied for declarations under section 4 of the Human Rights Act 1998. She alleged that sections 2, 8, 38, 50 and 97 of the Children Act 1989, and section 1 and the whole of the Child Abduction Act 1984, were incompatible with Articles 3, 5, 6, 8, 9 and 10 of the Convention.

The applications arose against a background of long-running family litigation, fears of international child abduction, and a recent interim care order. Given the volume and disorganisation of the material and the one-day listing, the court adopted a summary, permission-like assessment of whether any application was even arguably sustainable.

1. Disposition. All applications for declarations of incompatibility were summarily dismissed. None was even arguably sustainable on the material presented.
2. The court distinguished incompleteness from incompatibility. The absence of a power to remove parental responsibility from a parent who had abducted, or might abduct, a child did not make section 2 of the Children Act 1989 incompatible with Article 3. Whether such a power would be desirable was a policy question for government and Parliament.
3. Section 8 was not incompatible because prohibited steps orders might not be fully effective in practice or because border controls were insufficient. Those complaints concerned enforcement arrangements, not the compatibility of the statutory provision itself. Similar arguments concerning section 38 failed where they sought additional duties concerning medical examinations, transfer planning, personal belongings, religious practice or communications.
4. An interim care order did not, merely by taking a child into care, deprive the child of liberty in the sense contemplated by Article 5. If a particular implementation involved a deprivation of liberty, it could be challenged on the facts under section 7 of the Human Rights Act 1998. The discretionary provisions of the Children Act 1989 had to be read and applied consistently with section 6 of the 1998 Act and the Convention.
5. Section 50(3)(d), authorising reasonable force if necessary in executing a recovery order, was compatible with Article 3. Article 3 did not prohibit every use of physical force. Unreasonable or unnecessary force could give rise to an individual remedy, but that possibility did not invalidate the statutory power.
6. Section 97 did not compel private hearings or prevent publicity. The absence of legislation requiring public hearings or publication of anonymised judgments therefore did not make it incompatible with Articles 3, 6 or 10.
7. Section 1 of the Child Abduction Act 1984 did not cover wrongful retention after a lawful removal, leaving a recognised gap in domestic criminal law. That gap made the legislation incomplete, not incompatible. Nor did the absence of an express statutory duty to repatriate abducted children render the Act incompatible with Article 3.